VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
planning and environment LIST	vcat reference No. P11151/2021
Permit Application no. TP-2021-105	

CATCHWORDS	
Section 77 of the Planning & Environment Act 1987; Melbourne Planning Scheme; 
Signage – Heritage Impacts	

APPLICANT	Apparition Media Pty Ltd	
RESPONSIBLE AUTHORITY	Melbourne City Council	
SUBJECT LAND	327-329 Bourke Street, Melbourne	
HEARING TYPE	Hearing	
DATEs OF HEARING	8 & 9 February 2022	
DATE OF ORDER	14 April 2022	
CITATION	Apparition Media Pty Ltd v Melbourne CC [2022] VCAT 416	

Order
1	Pursuant to clause 64 of Schedule 1 of the Victorian Civil & Administrative Tribunal Act 1998, the permit application is amended by substituting for the permit application plans, the following plans filed with the Tribunal:
•	Prepared by:	Rob Pickett Design	
•	Drawing numbers:	Sheet A01 and Sheet A02, Revision A	
•	Dated:	5-11-2021	
2	The decision of the Responsible Authority is set aside.
3	In permit application TP-2021-105 a permit is granted and directed to be issued for the land at 327-329 Bourke Street, Melbourne in accordance with the endorsed plans and on the conditions set out in Appendix A.  The permit allows:
•	Construction and display of a hand painted high-wall major promotion sign.

Tracy Watson
Member			
APPEARANCES
For Applicant	Liam Riordan, town planner.  Mr Riordan called expert evidence from Michelle Bashta, heritage consultant.	
For Responsible Authority	Craig Murphy, town planner.  Mr Murphy called expert evidence from Nigel Lewis, heritage architect.	
INFORMATION
Description of Proposal	The permit application seeks approval for the display of a hand painted high-wall major promotion sign.  The proposed signage dimensions are 10.0 metres wide by 9.0 metres high.
	
Nature of Proceeding	Application under Section 77 of the Planning and Environment Act 1987 – to review the decision to refuse to grant a permit.  
	
Planning Scheme	Melbourne.
	
Zone and Overlays	Clause 37.04 – Capital City Zone, Schedule 2.
Clause 43.01 – Heritage Overlay, Schedule 509.
Clause 43.02 – Design and Development Overlay, Schedules 1 and 2.
Clause 45.09 – Parking Overlay, Precinct 2 Schedule.
	
Permit Requirements	Clause 37.04-5 – Sign requirements are at Clause 52.05.  This zone is not in a category at Clauses 52.05-11 to 52.05-14.  A permit is required to construct or put up for display a sign unless the schedule to the zone specifies otherwise:  Part 5.0 of Schedule 2 does not exempt the proposed sign from the need for a permit.
Clause 43.01-1 – To construct or display a sign.
There are no permit triggers under the other Overlays.
	
Relevant Scheme policies and provisions	Includes Clauses 15, 21.03, 21.06, 21.11, 21.12, 22.04, 22.07, 37.04, 43.01, 52.05, 65 and 71.02.	
Land Description	The host building (known as Deva House) is 9-storeys high and is located on the southern side of the Bourke Street Mall, and has a side abuttal to The Causeway. 
	
Tribunal Inspection	8 March 2022.	

REASONS
What is this proceeding about?
1	The Melbourne City Council issued a Refusal to Grant a Permit for the proposed sign, with amended grounds issued on 20 January 2022.  The amended grounds focus on the proposed signage being contrary to Clauses 22.07, 43.01 and 52.05 of the planning scheme.  It is a decision that the permit applicant has requested be reviewed by the Tribunal.
2	I consider that the key question for determination is whether the proposed sign adversely affects the significance of the applicable heritage places. 
3	The Tribunal must decide whether a permit should be granted and, if so, what conditions should be applied.  Having considered all submissions and expert evidence with regard to the relevant policies and provisions of the Melbourne Planning Scheme, I have decided to set aside the decision of the Responsible Authority.  My reasons follow.
Does the proposed sign adversely affect the significance of the heritage places?
4	There is no doubt that the host building and surrounds have a high level of heritage significance.  The subject building is identified as a ‘Significant’ building [refer to the incorporated document, City of Melbourne’s Heritage Places Inventory February 2020 Part A (Amended May 2021)], and its western abuttal is to part of the Royal Arcade, which is included on the Victorian Heritage Register (place no. H0023).  The subject site and surrounds are located within the Post Office Precinct heritage place (HO509), which includes other buildings that are also either graded as ‘Significant’, included on the Victorian Heritage Register and/ or have their own heritage overlay.
5	The Statement of Significance for the Post Office Precinct heritage place says, amongst other things:  “Overall, this precinct has maintained its place as a major retail centre for the metropolis, surviving the challenges of such suburban centres as Smith and Chapel Streets and Chadstone”; and “Important 19th century buildings such as the Royal Arcade and the GPO are now intermingled with the commercial gothic and art-deco characteristics of the 20th century shops and emporia to create a precinct characterised by glamour and variety.”  The subject building was originally occupied by G. J. Coles and Co. Ltd, and G J Coles is listed in the Post Office Precinct’s Statement of Significance as one of the “substantial variety and specialist stores” which developed in the precinct during the inter-war period. 
6	The key concerns of the Council relate to the impact of the proposal on the significance, character and appearance of the subject building, the adjacent building which forms part of the Royal Arcade, and the overall Post Office Precinct.
7	The Clause 22.04 local policy relating to new signage associated with heritage places seeks to:
•	Minimise visual clutter.
•	Not conceal architectural features or details which contribute to the significance of the heritage place.
•	Not damage the fabric of the heritage place.
•	Be in keeping with historical signage in terms of size and proportion in relation to the heritage place.
•	Be placed in locations where they were traditionally placed.
•	Be readily removable.
•	Address all relevant performance standards of Clause 22.07 – Advertising Signage.
8	The proposed signage area is located on the west side of the host building.  Ms Bashta’s expert evidence statement describes this side of the building as follows:
The west façade has minimal detail, including fenestration, with a series of regularly spaced windows located to the southern extent of the façade, beyond the lift core.  These windows are largely obscured in longer views to the building.
9	The proposed signage area is located within the ‘blank’ section of this western side wall which is located in the portion of the façade closer to Bourke Street.  The Central Activities District Conservation Study 1985 (which is a reference document to the planning scheme) includes a description of the subject building and the Public Benefit Bootery (at 323-325 Bourke Street), but does not say anything about the side walls of either of these buildings.  There is also nothing significant about the paint colour or finishes to the west side wall of Deva House.  In other words, the proposed sign does not: conceal valued architectural features or details, nor does it damage the fabric of the heritage place.  Further, the proposed signage is readily removable (as it will be hand painted) and is generally in a location where signs were traditionally placed.
10	The Central Activities District Conservation Study 1985 also states that, “As the precursor to the Cole’s present Bourke Street store, Deva House is related to it historically and to a small degree, visually.”  It is this relationship to Coles, and the associated original signage, that Mr Lewis focuses on in his evidence.
11	Mr Lewis agreed that some form of hand painted sign located on the western side wall which incorporates a minor level of promotional content is acceptable.  However, his evidence was that the sign should be static (that is, a fixed/ non-changing image), that any promotional content should relate to the use of the building, and that the size and location of the sign should be a long horizontal band located along the top of the western side wall.  In other words, Mr Lewis’s opinion was that any new hand painted sign needs to be a close match in terms of its size, location and extent of promotional content to the original c. 1925 ‘Coles Stores’ sign.  This original sign was in the order of 3.2 metres by 15.5 metres (approximately 50m2 in total).  By contrast, the proposed signage is located marginally more inset from the primary façade of the host building, and has a lesser length horizontally but is longer in its vertical plane.  The proposed 2.0 metres setback from the Bourke Street façade is appropriate as it provides a visual separation to the decorative cornice at the top of the host building, as well as to the building’s primary decorative façade.  As the original Coles sign was not inset from the top of the side wall, Mr Lewis’s oral evidence was that a 1.5-2 metres setback from this top edge is unwarranted.  This contrasts to the Council’s original heritage referral advice, from John Briggs, who was supportive of the signage concept, provided that this increased setback from the top edge of the side wall was provided.  On the basis of the evidence of both Mr Lewis and Ms Bashta, I am satisfied that the proposed sign does not need to be inset from the top edge of the wall.
12	After the last ‘Coles’ sign was removed, a series of ‘Bevilles’ signs were painted onto the western side wall of Deva House, dating from c. 1945.  The general size and siting of the proposed signage is more comparable to the last of these ‘Bevilles’ signs, which was painted onto the wall c. 1983 and had an overall area of approximately 95m2.  As with the ‘Coles’ signage these later signs were also business signs which included promotional content.
13	Unlike Mr Lewis, Ms Bashta’s opinion is that the size and location of the proposed sign and its promotional, and dynamic, content is acceptable.  Ms Bashta acknowledged that the later post-war ‘Bevilles’ signs do not relate to the time periods referred to in the Post Office Precinct’s Statement of Significance.  However, she still said that the ‘Bevilles’ signs are a relevant consideration because they form part of the overall history of the host building.  I also consider it to be a relevant factor that the presence of the last ‘Bevilles’ sign was not noted as an inappropriate addition in the Central Activities District Conservation Study 1985.  This 1985 study only noted that, “Deva House and the Public Benefit Bootery [at 323-325 Bourke Street] have lost some of their cohesion through the unsympathetic verandah addition to the Bootery, associated with the adjoining development.”  
14	I think that it is unreasonable to completely discount the size, positioning and content of the later ‘Bevilles’ signs.  Overall, I prefer Ms Bashta’s approach to the assessment of the proposal which takes a somewhat broader perspective in regards to the context and character of the host building and its surrounds.
15	I agree with Ms Bashta description of the context as featuring an ‘overall visual vibrancy’.  The existing context creates this ‘visual vibrancy’ (as opposed to ‘visual clutter’) through, amongst other things, the diverse range of existing signage.  The existing signage character in large part reflects the area’s position at the heart of the city’s retail core.  This diverse context includes: the 36 promotional banners positioned at a 2-3 storey height along the length of the Bourke Street Mall, and featuring changing content over time; the promotional flags fronting the Myer and David Jones buildings; the hand painted signs on the side walls of the London Stores building, visible from within the Mall; the extensive overhead Christmas decorations which are installed for several months each year; and the large, electronic and dynamic major promotional signage which bookend the Mall.  I acknowledge that the substantial promotional signs which bookend the Mall are not located on either a heritage building or within a heritage precinct.  However, I do think that these signs are visually prominent and are read as being intrinsically linked to the Mall.  Therefore I am satisfied that they lend weight to the validity of the proposed signage featuring only promotional content.  Moreover, the viewshed to the proposed sign is relatively confined given its location on a side wall, as well as the fact that some views are obscured by the overhead verandahs/ canopies along the southern side of the Mall, between Elizabeth Street and the subject site.  
16	I acknowledge that the existing signage local policy at Clause 22.07 of the planning scheme contains a general policy which discourages promotion signs.  It is also policy pursuant to Clause 22.07 that, “the design and location of new signs should respect the cultural heritage significance, character and appearance of the heritage place.”  This local policy has specific requirements relating to the Capital City Zone, with additional requirements for certain identified areas of special character within the Capital City Zone.  The subject site and surrounds is not in one of these areas of special character, which means that only the general ‘Guidelines for Signs within the Capital City Zone’ apply.  These guidelines allow for one wall sign (with unspecified dimensions) per façade as follows:
May be permitted in individual circumstances subject to urban design and amenity considerations.
To be compatible with scale of building and streetscape.
Signs to cover a minor proportion of the building façade.
Should not be detrimental to the architecture of the host building.
17	Major promotions signs are also discouraged under the Clause 52.05-8 Decision guidelines “where they will form a dominant visual element from residential areas, within a heritage place or where they will obstruct significant viewlines.”
18	In other words, the planning scheme maintains discretion around the suitability of a major promotion sign on the subject site.  As already described, within the Bourke Street Mall proper and at its bookends, promotion signage is already evident.  Mr Riordan’s submission and Ms Bashta’s expert evidence provide a detailed assessment against all of the relevant policies and provisions of the planning scheme, including valid arguments to support the promotional, and dynamic, nature of the proposed signage.  It is also noteworthy that there are numerous major promotion signs located throughout the broader Hoddle Grid/ Retail Core of the city (as demonstrated by Attachment 1 to Mr Riordan’s submission).  In addition, many of these existing promotion signs are dynamic, electronic signs which are sited on (and sometimes atop), or close to, heritage buildings.
19	I also wish to highlight that there are two large hand painted signs nearby in Elizabeth Street, one of which is a major promotion sign.  The closest hand painted sign is the ‘We Work’ sign on the southern side wall of the London Stores Building.  This fixed business signage has an area of approximately 130m2 and is also within the Post Office Precinct and is located on the side wall of a ‘Significant’ building which is also afforded its own individual heritage overlay (HO545).  The other hand painted sign (on the southern side wall of 92-94 Elizabeth Street, with a signage area of some 60m2) features purely promotional content which changes over time (that is, it is not a fixed signage image).  The sign at 92-94 Elizabeth Street is also located on the side wall of a ‘Significant’ building, albeit within a different heritage precinct (the Block Precinct).  Again, these existing examples lend weight to the appropriateness of the proposed signage.  When I undertook my site inspection, the promotional sign at 92-94 Elizabeth Street was an image painted with muted black, grey and white colours.  This compares to the more vibrant colour palette of the image shown in the photographs tabled at the hearing.  I consider this dynamism, in terms of the images and colours, to be a positive rather than a negative outcome, and the same holds true for the subject building and its specific heritage context.  
20	Mr Riordan advised that, as with the Elizabeth Street sign, the proposed signage images will each be in place for approximately three weeks, with a one week ‘change over’ period between images.  I think that this variation over time will add to the visual interest and vibrancy of the experience of the Bourke Street Mall rather than detract from this experience.  The non-fixed nature of the proposed signage is appropriate in its context, particularly given the changing nature of the existing promotional banner signs.  It is also consistent with the applicable Statement of Significance which describes the precinct as being “characterised by glamour and variety.”
21	It was drawn to my attention that the existing ‘We Work’ sign on the southern façade of the London Stores building also has a direct abuttal with the Elizabeth Street side of the Royal Arcade building (also forming part of the Victorian Heritage Register place no. H0023).  Ms Bashta’s opinion was that the proposed sign will form a secondary, backdrop element to the Royal Arcade, and that the proposed size of the sign, “has ensured that an unobstructed backdrop to the parapet, including the pediment, of the Royal Arcade will be maintained and accordingly any adverse heritage impact on the recognised architectural significance and presentation within the Bourke Street precinct is effectively ameliorated.”
22	Conversely, Mr Lewis’s opinion was that the proposed signage area is too large given “the context that it [Deva House] provides for the very significant Royal Arcade” and also because of the overall proportion of the more visible element of the side wall that the sign will occupy.  In weighing up the two expert opinions, I consider that it is warranted to further reduce the height of the sign from 9.0 metres to 7.0 metres (providing a reduced overall signage area of 70m2).  I consider that this change is necessary in order to: provide for a signage area that is somewhat at a mid-point between the size of the original ‘Coles’ sign and the last ‘Bevilles’ sign; provide for an overall shape that is closer to the ‘landscape’/ elongated shape of the original ‘Coles’ sign; increase the visual separation between the bottom edge of the proposed sign and the top edges of the Royal Arcade building’s parapet and pediment structures; and to provide for a sign which is appropriately proportioned to the overall area of the more visible component of the western side wall of the host building. 
23	In summary, subject to this change, I am satisfied that the signage will not contribute to visual clutter, nor will it be an unreasonably dominant visual element within its high-value heritage context.  I conclude that the signage will not adversely affect the significance, character or appearance of the host building (Deva House), the Post Office Precinct or the Royal Arcade.  I am therefore satisfied that purposes of the Heritage Overlay (reproduced below) are met:

To implement the Municipal Planning Strategy and the Planning Policy Framework.
To conserve and enhance heritage places of natural or cultural significance.
To conserve and enhance those elements which contribute to the significance of heritage places.
To ensure that development [in this case signage] does not adversely affect the significance of heritage places.

Conclusion
24	For the reasons outlined above, I have determined to set aside the decision of the Responsible Authority.  A permit will issue allowing for the proposed signage, subject to a reduction in its height from 9.0 metres to 7.0 metres.

Tracy Watson
Member			

APPENDIX A – permit conditions

PERMIT APPLICATION NO:	TP-2021-105	
LAND:	327-329 Bourke Street, Melbourne	
WHAT THE PERMIT ALLOWS:
In accordance with the endorsed plans:
	
•	Construction and display of a hand painted high-wall major promotion sign.

conditions:
1	Prior to the construction and display of the sign on the site, plans drawn to scale must be submitted to the Responsible Authority generally in accordance with the plans prepared by Rob Pickett Design, Revision A, Sheets A01 and A02, dated 5-11-2021, but amended to show:
(a)	A reduction in the height of the sign from 9.0 metres to 7.0 metres, such that: the distance to the bottom of the sign above ground level is shown as increasing from 21.0 metres (approx.) to 23.0 metres (approx.); and the overall area of the sign is decreased from 90m2 to 70m2.
These amended plans must be to the satisfaction of the Responsible Authority and when approved shall be the endorsed plans of this permit.
2	The location, size, material of construction of the sign as shown on the endorsed plans must not be altered or modified without the prior written consent of the Responsible Authority. 
3	The sign, including the advertising material therein as shown on the endorsed plan, shall at all times be maintained in good order and condition to the satisfaction of the Responsible Authority.
4	The sign must always be hand painted to the satisfaction of the Responsible Authority. 
5	No part of the advertising sign shall be internally or externally illuminated.
6	The advertiser’s corporate branding must not exceed 100mm x 400mm.

7	This permit will expire ten (10) years from the date of issue of the permit, at which time the sign must be removed and the site made good to the satisfaction of the Responsible Authority. 

--- End of Conditions ---